There was a bit of a kerfuffle the other week. It wasn’t the usual controversy about the winners of the Malta Song for Europe, or even the terrifically petty fuss about why Mary Spiteri awarded the trophy to the winner. The cause of concern was an issue of far greater significance – a presumed threat to our freedom of expression.

The Minister of Justice had just announced that a draft bill regarding media matters had been uploaded for public consultation. Among other measures, the Bill proposed to do away with criminal libel (good) and to increase damages to €20,000 in the case of libel suits (rather high).

It will no longer be possible to request the court to issue precautionary warrants against defendants in libel suits. Everybody seems to think this is a good thing because precautionary warrants may be issued against journalists and serve as a form of intimidation of the media. But then, all precautionary warrants may be issued in an attempt to intimidate defendants and we haven’t asked for them to be done away with altogether.

However, the provision in the bill which attracted the most ire was the proposal for editors of online news websites to notify their identity and contact details with the Registrar of Media. This was pounced upon as an unprecedented threat to the freedom of expression and a vile intrusion of privacy. We were warned that this was a very Big Brother measure by government who would control our every utterance online. Putin was mentioned, and totalitarian regimes and evil dictators, and it got very worrying.

I love a bit of Mediterranean melodrama and find the image of Minister Owen Bonnici jackbooting over our online emoticons suitably amusing/terrifying, but at the same time I can’t help feeling that it would be far more helpful if we stuck to the facts.

And despite the hysterical hyperventilating the facts are the following: The obligation to notify or register the identity and address of editors of physical newspapers has subsisted for over 30 years and nobody has batted an eyelid over it. Why weren’t there any mass protests and strident screams of panic over this? Mainly because it is a useful and practical measure for third parties to find out who the editor of a newspaper is on any given day. If anything potentially libellous or untruth-ful is published, one merely requests information as to who was the registered editor on that day and it is easily available, reliable proof for presentation in court.

Many of those lawyers squealing away about how registration is equivalent to censorship have used the existing system of registration for years

Many of those lawyers squealing away about how registration is equivalent to censorship have used the existing system of registration for years. It saves third parties the expense and inconvenience of trying to find the relevant contact details of editors. If you think that’s not important, try being a victim of malicious and untrue slurs and not being able to trace the author to exercise your right to sue for compensation.

There’s all this guff being said about things not being the same online. Why is that? Why should authors of defamatory, untrue or malicious statements be exempted from responsibility just because their lies are uploaded online instead of in print? If anything, material updated online has a much wider – and potentially global – audience and more potential to do harm, so what is wrong with some measure of transparency as to the person who is responsible for it? Isn’t it akin to registration of companies and e-commerce sites? In these cases, registration is required so that there is some form of record as to who is the beneficial owner of companies or the provider of goods and services, precisely so that any third party affected can sue the correct defendant in each case.

Another point that isn’t being mentioned is that notification or registration is free and cannot be refused. Failure to register cannot result in removal of the news site. And personal blogs and Facebook pages do not have to be registered – despite all the repeated, incorrect claims made to the contrary.

The drafters of the bill have linked the right to protect the identity of sources to those editors and news sites which are registered. This proposal has come in for criticism as an attempt by government to force disclosure of sources from those who are not registered. I would say that it is more of an attempt to see who should be able to protect their sources.

Contrary to widely held belief, it is not an established point at law that everyone enjoys source protection. In different jurisdictions (even European ones and not only those governed by mad, bad dictators) there is an ongoing debate as to whether every author – even anonymous ones – should be afforded source protection. There have been judgments in the UK where the courts have decreed that the protection against being forced to reveal confidential information or sources does not extend to those who make anonymous comments on news sites and blogs.

Laws which prevent the forced disclosure of sources are known as “shield laws” and guess what? They are not applicable across the board to online commenters. In fact, several states in Australia and the US do not extend the applicability of shield laws to bloggers.

Now, you may think that this is unfair and that people have every right to express their opinion anonymously and to let it be judged on its own merits and not on its authorship. But then you’d be assuming that every person who writes anonymously is doing so in good faith and not maliciously, untruthfully or as a propagator of fake news with an undisclosed agenda.

As lawyer Andrew Borg Cardona wrote when commenting about the anonymous site Maltawinds: “Unless the credentials of the people behind this page are known, how are we supposed to assess its reliability? For all we know, they’re simply grinding their own – or someone else’s – axes.”

Precisely. So why are we opting for hysteria instead of transparency as proposed in the draft bill?

drcbonello@gmail.com

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